Attorney Scoffs At Barling Liquor Suit Claim

Tuesday

Feb 26, 2013 at 4:04 AM

A claim by the city of Barling it was unaware of a lawsuit challenging election results to allow liquor sales in the city is "without merit," according to an attorney who successfully fought to invalidate the election results.

A claim by the city of Barling it was unaware of a lawsuit challenging election results to allow liquor sales in the city is “without merit,” according to an attorney who successfully fought to invalidate the election results.

On Nov. 6, Barling voters approved liquor sales in the city by an almost 2-to-1 margin.

“The city of Barling’s argument that it was unaware of these proceedings is without merit as it knew, or should have known that the election was improper,” wrote Booneville attorney Erik Danielson.

Barling City Attorney Matthew Ketcham agrees city officials knew the proposal would likely draw a legal challenge, but that it’s misplaced logic to say they knew a lawsuit was filed because they weren’t provided notice or even given a courtesy call.

On Nov. 20, Danielson, representing 21 Barling residents, filed a complaint in Sebastian County Circuit Court in Greenwood asking a judge to void the election results. In the complaint, Danielson argued that because the entire southern district of Sebastian County voted to go “dry” in 1944, state law requires the entire district vote on whether a single city within the district can allow liquor sales.

The three-person Sebastian County Election Commission was named as the defendant.

On Jan. 29, Circuit Court Judge Steve Tabor ruled that the November liquor vote violated the Arkansas Alcoholic Control Act of 1935. The judge rejected Barling’s motion to intervene in the case, finding the city’s motion procedurally flawed and untimely and that the city had no standing to intervene.

The city’s latest filing has no merit, Danielson claimed in his response to a Feb. 8 motion in which Ketcham asks Tabor to reverse his Jan. 29 decision, allow Barling to intervene and declare the 1935 law unconstitutional.

Danielson’s filing includes minutes from several Barling Board of Directors meetings; he argues they provide evidence of what Barling officials knew or should have known:

• Minutes from a March 9, 2010, board meeting indicate City Director Bruce Farrar stated it would require signatures from 38 percent of registered voters in the Greenwood District to get liquor sales in Barling on the ballot.

• Minutes from a March 27, 2012, board meeting indicate Ketcham informed the board that the certification for the November election needed to be reissued to reflect that the petition contained 38 percent of voters in Barling, not the Greenwood District.

• Minutes from an Oct. 9 meeting indicate Farrar was aware of a law passed in 1947 regarding the alcohol issue in Sebastian County and Ketcham discussed “different scenarios that could happen with the vote on the alcohol issue in the upcoming election.”

In his response, Danielson also included a series of emails between state Rep. Stephanie Malone, R-Fort Smith, who is also marketing director for the Fort Chaffee Redevelopment Authority, and Ivy Owen, FCRA executive director, and Lorie Robertson with Rightmind Advertising in July and November that address potential issues with the election:

• In a July 13 email thread, Robertson suggests Malone contact Ketcham to “get him up to speed” and tells Malone that Farrar “believes all is well” and she didn’t alert Farrar to any “of the discoveries or discussions that the three of us had yesterday.”

Robertson’s email was in response to an earlier email from Malone, in which she urged all movement on the petition by people associated with FCRA to stop.

“There has been much miscommunication all the way around and now this is an issue me and Mr. Langley need to deal with. … Please understand I am going to do this because I am trying to make sure this gets through,” Malone wrote.

Langley is Michael Langley, administrator of the Arkansas Alcoholic Beverage Control Division in Little Rock.

• On July 19, Robertson asked Malone to fill her in on her discussion with Langley.

“I talked with Langley and he said it is my call, I say let it go, if the attorney has notified them that it can be contested and they are still going to push for it than let them,” Malone said.

• In a Nov. 21, 2012, email thread between from Malone and Owen, Malone informed Owen that Farrar called her about changing the law.

“First thing is you may want to remind him (Farrar) that he did know about this waay (sic) before the election, and the ABC has documentation of that,” Malone wrote.

Farrar chose to collect signatures in Barling instead of the entire Greenwood District, Ketcham said, because he and Farrar believe the Arkansas Alcoholic Control Act of 1935 is unconstitutional and they expected the petition to be challenged in court before the election or the result challenged if the measure passed.

It wasn’t until Jan. 1, when either he or former City Administrator Ray Caruthers saw an article in the Times Record about a final hearing in the case that any Barling official was aware a lawsuit was filed, Ketcham said.

While Danielson argues the Barling’s filing was untimely, Ketcham said the 600-pound gorilla in the corner no one is dealing with is the constitutional question.

The 1935 law allows a city in a wet county or district to hold a city election on whether to become dry, while a city in a dry county or district must hold a countywide election to allow liquor sales, Ketcham said.

“Some cities are given preference (under the 1935 law) … one city shouldn’t have rights another city doesn’t … there is no rational basis for it,” Ketcham said. “It violates the equal protection clause.”

But if Barling isn’t allowed to intervene, Ketcham won’t get a chance to make that argument.

“So far Barling can’t get a seat at the table in a case about a vote in Barling,” Ketcham said.

The FCRA filed a motion to intervene two days after Tabor voided the election results; Tabor rejected the FCRA motion as untimely.

Ketcham has until the close of business Thursday to respond to Danielson’s filing.

Once Ketcham files his response, Tabor can make a ruling based on the pleadings or hold a hearing before he issues a ruling.